Problems of qualification of collaborative activities. Part 1. Why do we need clean qualification and the pre-collaboration period

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Problems of qualification of collaborative activities. Part 1. Why do we need clean qualification and the pre-collaboration period

Within the framework of the Formation of common understanding of standards and approaches to investigation and prosecution in crimes related to armed conflict by representatives of professional communities of the criminal justice system project, JustTalk drafted a series of analytical materials on the topic “What's wrong with responsibility for collaboration?”.

Юлія Лісова

4 October, 2023

345

Problems of qualification of collaborative activities. Part 1. Why do we need clean qualification and the pre-collaboration period

In four interrelated articles, Yuliia Lisova, lawyer, coordinator of work with JustTalk authors, analyzes individual aspects of responsibility for collaboration, notably:

Part 1. Why do we need clean qualification and the impact of the “pre-collaborative” period.
Part 2. Criteria for distinguishing collaborative activities from related crimes.
Part 3. Conformity of legal framework on collaborative activities with Ukraine's international legal obligations.
Part 4. What happens in the courts?

So, today we start with the first part.

Why do we need clean qualification?

Collaborative activities are currently the second most common crime against national security. Collaborationism as a phenomenon appeared in February 2014, and until March 2022, such actions were not qualified as a separate component of the crime. This led to impunity for acts or qualifications under other articles of the Criminal Code of Ukraine (hereinafter – CC), which provide legal definition to the related phenomena. It was the full-scale war and the martial law that led to the introduction of a new article into the Criminal Code, which stipulates responsibility for collaborative activities[1].

Balanced, justified, based on clear and predictable law, fair application of the legislation on responsibility for collaborative activities is an important component of the expected reintegration of the de-occupied territories.

Citizens of Ukraine, remaining and staying for a long time in the temporarily occupied territories, who are forced to organize their lives and provide for their lives and the lives of their relatives under the conditions of occupation, should hope that after the liberation, the Ukrainian authorities, persecuting the collaborators, will refrain from groundless accusations and punishments. Citizens of Ukraine should be sure that if they had no intention to cause harm to the interests of Ukraine, if their activities caused no damage, they will not become victims of unjustified persecution.

In his interview to Telegraph on August 14, 2023, the Prosecutor of the Autonomous Republic of Crimea and the city of Sevastopol Ihor Ponochovnyi noted that the statements of some Ukrainian politicians that everyone in Crimea are traitors or collaborators are quite harmful[2]. At the same time, the effective legal framework in this field leaves a lot of room for the subjective and arbitrary application of criminal liability for collaborationism because of its imprecision and contradiction. And this will obviously have negative consequences.

The population of the occupied territories will lose their desire for de-occupation due to the fear of expected criminal liability “for cooperation with the occupiers” for themselves or their loved ones. Or, fearing unjustified criminal liability, citizens of Ukraine who only worked, provided social services, carried out entrepreneurial activities for the purpose of supporting the civilian population in the conditions of occupation, without causing specific damage to the national security of Ukraine, will not have the desire to return under the control of the Ukrainian authorities. Instead, they may stop their usual life, leave their place of residence, leave their relatives behind, become forced migrants and forever end their ties with Ukraine.

To ensure inevitability of fair punishment for persons who deliberately acted to the detriment of Ukraine and caused damage to the interests of Ukraine and its citizens, the legal provisions on liability for collaborative activities should guarantee protection against the arbitrary application of such liability. This will affect the level of public trust in the temporarily occupied territories in the Ukrainian authorities and, accordingly, the speed of reintegration processes.

Pre-collaborative period

Before March 2022, criminal legislation did not establish a crime such as collaborative activities. Before 2014, there was no such objective need (and the norms of the Criminal Code, like other laws, are a reflection of objective reality): the territorial integrity of Ukraine was not violated, its territories were not captured, and they were not under the control of the aggressor state, citizens of Ukraine were not under occupation.

Since 2014, after the occupation of the Autonomous Republic of Crimea and part of the territories of the Donetsk and Luhansk regions, the facts of cooperation of the citizens of Ukraine who remained in these territories with the occupying power – collaboration in various forms (military collaboration, political collaboration, economic collaboration, cultural collaboration, livelihood-related collaboration, etc.) came to knowledge. But, unfortunately, until March 2022, the law did not define the grounds, conditions and procedure of responsibility for collaborative activities that took place in the occupied territories. Law enforcement agencies and courts limited themselves to the application of Article 111 of the Criminal Code to the collaborators. This Article provides for responsibility for high treason, allowing the agencies and courts to broadly apply it to the offenses that are actually collaboration and do not have signs of high treason.

At the same time, starting from February 2014, because of the armed aggression of the Russian Federation against Ukraine, the occupation of part of the territories of Ukraine, the presence of a significant number of Ukrainian citizens in these territories, clear and understandable regulation of legal relations to determine permissible or prohibited activities (collaboration) in these territories was (and still is) necessary. This regulation should separate criminal activity from the activity that is socially necessary to ensure livelihoods of civilian population under the conditions of occupation and does not cause harm to the interests of society, the state and citizens.

The Law #2108-IX as of March 3, 2022, added to the Criminal Code the Article 111^{1 “}Collaborative Activities.” It criminalizes the following actions:

public denial by a citizen of Ukraine of armed aggression against Ukraine, establishing and confirming the temporary occupation of part of the territory of Ukraine, or public calls by a citizen of Ukraine to support the decisions and/or actions of the aggressor state, armed formations and/or the occupation administration of the aggressor state, to cooperate with the aggressor state, armed formations and/or the occupying administration of the aggressor state, to refuse recognition of the state sovereignty of Ukraine to the temporarily occupied territories of Ukraine;
voluntary occupation by a citizen of Ukraine of a position not related to the performance of organizational-administrative or administrative-economic functions in illegal authorities created in the temporarily occupied territory, including in the occupation administration of the aggressor state;
propaganda by a citizen of Ukraine in educational institutions, regardless of the types and forms of ownership, with the aim of facilitating the implementation of armed aggression against Ukraine, establishing and confirming the temporary occupation of part of the territory of Ukraine, avoiding responsibility for armed aggression against Ukraine by the aggressor state, as well as the actions of citizens of Ukraine aimed at implementing education standards of the aggressor state in educational institutions;
transfer of material resources to illegal armed or paramilitary formations created on the temporarily occupied territory, and/or armed or paramilitary formations of the aggressor state, and/or conducting economic activities in cooperation with the aggressor state, illegal authorities created on the temporarily occupied territory, including the occupation administration of the aggressor state;
voluntary occupation by a citizen of Ukraine of a position related to the performance of organizational-administrative or administrative-economic functions in illegal authorities created on the temporarily occupied territory, including in the occupying administration of the aggressor state, or voluntary election to such authorities, and also participation in the organization and holding of illegal elections and/or referendums in the temporarily occupied territory or public calls for holding such illegal elections and/or referendums in the temporarily occupied territory;
organizing and conducting political events, carrying out information activities in cooperation with the aggressor state and/or its occupying administration, aimed at supporting the aggressor state, its occupying administration or armed formations and/or at avoidance of responsibility of the aggressor state for armed aggression against Ukraine, in the absence of signs of treason, active participation in such activities;
voluntary occupation by a citizen of Ukraine of a position in illegal judicial or law enforcement bodies created in the temporarily occupied territory, as well as voluntary participation of a citizen of Ukraine in illegal armed or paramilitary formations created in the temporarily occupied territory and/or in the armed formations of the aggressor state or assisting such formations in the conduct of hostilities against the Armed Forces of Ukraine and other military formations established in accordance with the laws of Ukraine, voluntary formations that were established or self-organized to protect the independence, sovereignty and territorial integrity of Ukraine[3].

But unfortunately, the expectations from the new composition of the crime that it would provide more clear, predictable and individualized application of criminal liability for collaborative activities did not come true.

Distinguishing collaborative activities from other crimes against the foundations of national security

The reasons for significant difficulties for the correct qualification of illegal actions, distinguishing collaborative activities from other crimes and applying a fair punishment are that Article 111¹of the Criminal Code under collaborative activities lists the same actions that are provided for by other norms of the Criminal Code as other criminal offenses. In turn, incorrect qualifications can lead to unreasonable and unjust punishment, as well as cause illegal exemption from responsibility or illegal conviction.

Notably:

The Law #2110-IX as of March 3, 2022, added Article 436²”Justification, Recognition as Legitimate, Denial of the Armed Aggression of the Russian Federation against Ukraine, Glorification of its Participants” to the CC;

The Law #2198-IX as of April 14, 2022, added Article 111² “Assistance to an Aggressor State” to the CC’

According to Article 109 of the Criminal Code, responsibility is provided for “actions aimed at violently changing or overthrowing the constitutional order or at seizing state power.”

Article 110 of the Criminal Code provides for responsibility for encroachment on the territorial integrity and inviolability of Ukraine.

Article 260 of the Criminal Code provides for responsibility for the creation of paramilitary or armed formations not provided for by law or participation in their activities.

Article 258³of the Criminal Code establishes responsibility for creating a terrorist group or terrorist organization, leading or participating in such group or organization.

Article 436²of the Criminal Code provides for responsibility for justifying, recognizing as legitimate, denying the armed aggression of the Russian Federation against Ukraine, and glorifying its participants.

These articles define as crimes actions identical to collaborative activities, but provide for different qualification of such actions and different measures of punishment. This allows for arbitrarily interpreting the criminal law and arbitrarily applying it, and may cause unfair resolution of criminal proceedings.

Unfortunately, the content of Article 111¹of the Criminal Code in its effective version does not allow clearly distinguishing collaborative activities from other related crimes. Effective lack of sustainable law enforcement and judicial practice leads to unequal application of the law and contradictory court decisions.

For example, the verdict of the Oktiabrskyi District Court of the city of Poltava as of August 16, 2023, in case #554/6958/23[4] convicted a citizen of Ukraine who was a fighter of the so-called “DPR” for voluntarily participating in an illegal armed formation created on the temporarily occupied territory, and also voluntary participation in the armed formation of the aggressor state. Such actions were simultaneously qualified under Part 2 of Article 111 and Part 7 of Article 111¹of the Criminal Code. That is, the same actions were qualified under two articles of the Criminal Code, because the provision of Article 111 provides for responsibility for switching to the side of the enemy during an armed conflict, and Article 111¹ provides for responsibility for the voluntary participation of a citizen of Ukraine in illegal armed or paramilitary formations establishedon temporarily occupied territory, and/or in the armed formations of the aggressor state. At the same time, Article 260 of the Criminal Code, which also provides for responsibility for participation in the activities of paramilitary formations not provided for by the laws of Ukraine, was not applied to the convict.

In another case, under similar circumstances, the verdict of Koroliovskyi District Court of the city of Zhytomyr as of August 31, 2023, in case #296/8814/19[5] convicted a citizen of Ukraine, who was a fighter of the so-called “DPR” for being a participant of military formations not provided for by law, armed resistance and illegal opposition to the performance of official duties by employees of law enforcement agencies of Ukraine and servants of the Armed Forces of Ukraine, taking part in hostilities, performing combat shifts, participating in military and physical training of armed forces not provided for by law. Such actions were simultaneously qualified under Part 1 of Article 258³as taking part in the activities of a terrorist organization and facilitating its activities and under Part 2 of Article 260 of the Criminal Code as taking part in the activities of an armed formation not provided for by law. At the same time, Part 7 of Article 111¹of the Criminal Code, which also provides for responsibility for voluntary participation in illegal armed or paramilitary formations created in the temporarily occupied territory and/or in the armed formations of the aggressor state, was not applied to the convict.

In court decisions in cases with signs of collaborative activities, usually there is no clear motivation why in some proceedings the same actions are qualified under Article 111 of the Criminal Code as treason, and in others, under Article 111¹of the Criminal Code as collaborative activities.

For example, the verdict of the Shevchenkivskyi District Court of the city of Chernivtsi as of April 24, 2023, in case #727/461/23[6] convicted a citizen of Ukraine who held the position of “deputy head of the administration of the city of Torez” of high treason under part 2 of Article 111 of the Criminal Code. As stated in the verdict, after the start of open Russian aggression on February 24, 2022, the accused person agreed to the offer of the Russian occupation administration to perform the duties of “deputy head of the administration of the city of Torez.” According to the verdict, the accused person was occupying this position at the time of the verdict. She was also convicted under Part 1 of Article 258³of the Criminal Code.

That is, the accused person held a position related to the performance of organizational-administrative and administrative-economic functions in illegal authorities created in the temporarily occupied territory, which fall under the definition of collaborative activities, the responsibility for which is provided for in part 5 of Article 111 1 of the Criminal Code, yet was convicted of high treason under Article 111 of the Criminal Code.

This verdict of the Shevchenkivskyi District Court of the city of Chernivtsi as of April 24, 2023, on the conviction of the accused under Part 2 of Article 111 of the Criminal Code, as well as under Part 3 of Article 258³ of the Criminal Code, was upheld by the decision of the Chernivtsi Court of Appeal as of June 19, 2023, case number 11-kp/822/237/23[7].

In another case, for similar actions committed under similar circumstances, the verdict of the Kirovskyi District Court of the city of Kirovohrad as of August 22, 2023, in case #404/4153/22[8] convicted a citizen of Ukraine for having voluntarily taken the position of acting head of the administration of the Novoaidar District of the so-called “LPR” related to the performance of organizational-administrative and administrative-economic functions in illegal authorities created in the temporarily occupied territory. Such actions were classified according to part 5 of Article 111¹of the Criminal Code as voluntary occupation by a citizen of Ukraine of a position related to the performance of organizational-administrative or administrative-economic functions in illegal authorities created in the temporarily occupied territory, including in the occupation administration of the aggressor state.

At the same time, under similar circumstances, the verdict of the Zhovtnevyi District Court of the city of Zaporizhzhia as of March 13, 2023, in case #331/2611/22[9] convicted a citizen of Ukraine for having voluntarily taken the position of acting mayor of the city of Berdiansk in an illegal authority – the “mayor’s office” of the city of Berdiansk, related to the performance of organizational-administrative functions in an illegal authority created on the temporarily occupied territory of Berdiansk territorial community. Such actions were qualified as a set of crimes under Part 2 of Article 111 of the Criminal Code as high treason committed under martial law, and at the same time under Part 5 of Article 111¹ of the Criminal Code asthe voluntary occupation by a citizen of Ukraine of a position related to the performance of organizational-administrative or administrative-economic functions in illegal authorities created in the temporarily occupied territory, including in the occupation administration of the aggressor state. The decision of the Zaporizhzhia Court of Appeal as of July 25, 2023, upheld this sentence[10].

The cited court decisions do not provide clear justification why the same actions are qualified as collaborative activities in one case, as treason in another case, and as a combination of treason and collaborative activities in the third case.

Such contradictory judicial practice confirms insufficient quality, comprehensibility and predictability of effective legal norms, and requires prompt and significant improvement of the legislation on responsibility for collaborative activities.

[1] Golinka M. I. Article 111-1 of the Criminal Code of Ukraine (collaborative activities) and related phenomena: problems of legal regulation. Scientific notes of the Lviv University of Business and Law. Economic series. Legal series. Issue 36/2023, p. 251: http://dx.doi.org/10.5281/zenodo.7807937

[2] https://ark.gp.gov.ua/ua/news.html?_m=publications&_c=view&_t=rec&id=340024

[3] https://zakon.rada.gov.ua/laws/show/2108-20#Text

[4] https://reyestr.court.gov.ua/Review/112886268

[5] https://reyestr.court.gov.ua/Review/113157324

[6] https://reyestr.court.gov.ua/Review/110468840

[7] https://reyestr.court.gov.ua/Review/111612648

[8] https://reyestr.court.gov.ua/Review/112982058

[9] https://reyestr.court.gov.ua/Review/109492361

[10] https://reyestr.court.gov.ua/Review/113047810

This publication is made possible by the generous support of the American people through the United States Agency for International Development (USAID) in the framework of the Human Rights in Action Program implemented by the Ukrainian Helsinki Human Rights Union.

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